Platform End User Agreement

This Platform End User Agreement is a binding agreement between you (“you”) and Badge Group, Inc. (“Badge”).  This Agreement governs your use of Badge’s software-as-a-service platform, including any software, documentation or data related thereto (the “Platform”).  

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCEPT THIS AGREEMENT OR USE THE PLATFORM.

1. Access Grant; Account.  

1. Access Grant.  Subject to the terms of this Agreement, Badge grants you a limited, non-exclusive, non-transferable, non-sublicensable right to use the Platform solely to (i) install mobile wallet passes on your mobile device from certain customers available on the Platform (“Customers”) and (ii) access Customer content and push-notification in connection with such mobile wallet passes (“Customer Content”).  Badge reserves the right to withdraw or amend the Platform and any service or material Badge provides through or in connection with the Platform at Badge’s sole discretion without notice.  Badge will not be liable if for any reason all or any part of the Platform are unavailable at any time or for any period.  You agree to receive push-notifications in connection with such Customer Content. If you do not wish to receive notifications, you may turn off these notifications on your supported device.

2. Account.  You will be required to create an account (an “Account”) to use the Platform and/or access such mobile wallet passes and Customer Content.  To create an Account, you will need to provide an email address and certain other information required by Customer or Badge.  Maintaining Account security is very important.  You are entirely responsible for maintaining the confidentiality of the Account.  You may not transfer your Account or permit any other person to use your Account.  You agree to monitor your Account and notify Badge immediately if you believe that your Account and/or password have been compromised or if you suspect unauthorized usage of your Account.

1. Restrictions. You shall not: 

1. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Platform;

2. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Platform;

3. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform;

4. copy, sublicense, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Platform; 

5. hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing;

6. circumvent or otherwise create or implement any workaround to any rights management or security features in or protecting the Platform; 

7. use the Platform in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);

8. use the Platform in any way that defames, harasses, abuses, threatens, or incites violence towards any individual or group;

9. use the Platform in any way that infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity and/or other rights; or

10. otherwise access or use the Platform in a manner inconsistent with this Agreement or applicable law.

1. Reservation of Rights. You acknowledge and agree that Badge retains all right, title and interest in and to the Platform and any and all copyrights, mask works, moral rights, industrial designs, trademarks, service marks, trade names, trade secrets, patents, publicity, and any other rights to intellectual property and goodwill therein or related thereto, recognized in any jurisdiction or country of the world, whether or not registered or perfected (“Badge Intellectual Property”).  You do not acquire any ownership interest in any Badge Intellectual Property under this Agreement or any other rights thereto, other than to use the Platform as permitted by this Agreement and subject to all terms, conditions, and restrictions, under this Agreement.  All goodwill generated from the use of the Platform will inure to Badge’s exclusive benefit.  

2. Collection and Use of Your Information.  You acknowledge that when you use the Platform, Badge may use automatic means (including, for example, cookies and web beacons) to collect information about your use of the Platform.  You also may be required to provide certain information about yourself as a condition to accessing or using the Platform or certain of its features or functionality (including in connection with creating the Account).  All information we collect through or in connection with the Platform is subject to our Privacy Policy.  By accessing, using and providing information to or through the Platform, you consent to all actions taken by Badge with respect to your information in compliance with such Privacy Policy.

3. Customer Content and Transactions. You acknowledge and agree that (a) Customer is solely responsible for all Customer Content and interactions with you on or through the Platform, (b) any transaction entered into by you with such Customer pursuant to the mobile wallet passes created on or through the Platform or otherwise will be a transaction between Customer and you, (c) Customer will be responsible for processing, fulfilling and completing all such transactions, including shipping any applicable products, providing any applicable services, and handling all payments (whether directly or through a third party payment processor), (d) Customer will provide all customer service and support in connection with any such transactions and (e) Customer will be solely responsible and liable for all such transactions, including any disputes with you regarding any order, product or service.  Badge does not execute or fulfill products, orders, services or transactions.  YOU ACKNOWLEDGE AND AGREE THAT Badge EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY WITH RESPECT TO SUCH ORDERS, PRODUCTS, SERVICES AND TRANSACTIONS.

4. Updates.  Badge may from time to time in its sole discretion develop and provide Platform updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”).  Updates may also modify or delete in their entirety certain features and functionality.  You agree that Badge has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.  You shall promptly install all Updates and acknowledge and agree that the Platform or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.

5. Third-Party Applications.  The Platform and any services provided in connection therewith may include or integrate with select third-party services, applications and/or software (collectively, “Third-Party Applications”).  Badge MAKES NO WARRANTIES REGARDING ANY THIRD-PARTY APPLICATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT ANY THIRD-PARTY APPLICATION WILL (A) REMAIN AVAILABLE THROUGHOUT THE TERM; (B) BE ERROR FREE OR RUN INTERRUPTED; (C) OFFER ANY PARTICULAR FEATURES OR PERFORMANCE; OR (D) MEET YOUR NEEDS.  ALL THIRD-PARTY APPLICATIONS ARE PROVIDED AS-IS AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY APPLICATION IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY APPLICATION.  You acknowledge and agree that (a) you are responsible for complying with any and all third-party terms that apply to the Third-Party Applications and (b) Badge shall have no responsibility or liability with respect to your use of the Third-Party Applications.  Without limiting the generality of the foregoing, the Platform includes, but is not limited to, the following Third-Party Applications: Apple Wallet and Google Wallet.  You agree to comply with all applicable policies and terms related to, or governing, Apple Wallet, Google Wallet and such Third-Party Applications.

6. Third-Party Materials.  The Platform may display, include, or make available third-party content (including Customer Content, data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”).  You acknowledge and agree that Badge is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof.  Badge does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials.  Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

7. Term and Termination.

1. The term of Agreement commences when you acknowledge your acceptance of this Agreement and will continue in effect until terminated by you or Badge as set forth in this Section.

2. You may terminate this Agreement or your Account by contacting Badge at support@trybadge.com.

3. Badge may immediately terminate this Agreement or your Account, or suspend or limit your access or use of the Platform, at any time without notice for any (or no) reason, including, without limitation, (i) your violation any of the terms and conditions of this Agreement or (ii) your failure to comply with the terms and conditions of any policy or terms governing a Third-Party Application (or the use thereof).  Badge will not have any liability whatsoever to you for any termination or suspension of this Agreement, your Account or access to the Platform.

4. Upon termination:

1. all rights granted to you under this Agreement will also terminate; and

2. you must cease all use of the Platform and your Account.

1. Termination will not limit any of Badge’s rights or remedies at law or in equity.

1. Disclaimer of Warranties. THE PLATFORM IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, Badge, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITATION TO THE FOREGOING, Badge PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. 

11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Badge OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE PLATFORM FOR:

1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; AND

2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED ONE HUNDRED DOLLARS ($100). 

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR Badge WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. 

12. Indemnification.  You agree to indemnify, defend, and hold harmless Badge and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Platform or your breach of this Agreement.

13. Export Regulation.  The Platform may be subject to US export control laws, including the Export Control Reform Act and its associated regulations.  You shall not, directly or indirectly, export, re-export, or release the Platform to, or make the Platform accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.  You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform available outside the US.  If you access the Platform from outside the United States, you are responsible for compliance with local laws.

14. US Government Rights.  The Platform is commercial computer software, as such term is defined in 48 C.F.R. §2.101.  Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Platform as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

15. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

16. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Platform shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case, located in San Francisco, California.  You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 

17. Limitation of Time to File Claims.  ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

18. Prohibition of Class and Representative Actions.  YOU AND Badge AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

19. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Badge with respect to the Platform and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Platform. 

20. Relationship of the Parties.  For all purposes under this Agreement, each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract.

21. Assignment.  You may not assign this Agreement without the prior written consent of Badge, but Badge may assign or transfer this Agreement, in whole or in part, without restriction.  This Agreement will inure to Badge’s successors, assigns, licensees, and sublicensees.

22. Force Majeure.  Badge will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters.

23. Waiver.  No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.  

24. Electronic Communications.  You agree to receive all communications, agreements, and notices that Badge provides in connection with the Platform (“Communications”) via electronic means, including by email, text, in-product notifications, or by posting them on the Platform.  You agree that all Communications Badge provides to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your Account contact information current.

25. Changes to this Agreement.  Badge may revise and update this Agreement from time to time at its sole discretion.  All changes are effective immediately upon posting, and apply to all access to and use of the Platform.  Your continued use of the Platform following the posting of the revised Agreement means that you accept and agree to the changes.  You are expected to check this page each time you access the Platform so you are aware of any changes, as they are binding on you.‍